February 29, 2004

"Clause" not "laws."Transcripts of Thursday's debate get a word wrong in a key spot that seems to be making some people think John Kerry flip-flopped in his opinion about whether the Defense of Marriage Act is unconstitutional. Zachary Roth at CJR Campaign Desk calls attention to the place in the debate where Ron Brownstein of the LA Times questioned Kerry:

Brownstein, asked: "... if the Defense of Marriage Act is unconstitutional, isn't President Bush right, that the only way to guarantee that no state has to recognize a gay marriage performed in any other state is a federal constitutional amendment?"

Kerry answered, "... I think, under the full faith and credit laws, that I was incorrect in that statement. I think, in fact, that no state has to recognize something that is against their public policy."

[Rothstein] asked the senator why he had opposed legislation in 1996 that would have allowed states to deny such recognition.

Directly contradicting a claim made by Bush, Kerry and Edwards both said the Constitution does not require states to recognize gay marriage licenses granted elsewhere in the country.

Roth's criticism goes like this:

Kerry did say that, but not in response to a question about his 1996 vote on DOMA. In fact, that answer came in response to Brownstein's subsequent question, which was: "If the Defense of Marriage Act is unconstitutional, isn't President Bush right, that the only way to guarantee that no state has to recognize a gay marriage performed in any other state is a federal constitutional amendment?"

A reader of Pickler's piece would come away with the impression that Kerry answered Brownstein with a complete non sequitur. In fact, Kerry's responses were confusing, but did ultimately make logical sense, if you accept his admission that he now considers DOMA constitutional.

Really, I think that Roth is the one who's confused here, though it's completely understandable, because Kerry was being murkily concise, there was no decent follow-up question, there's a perplexing reference to an "incorrect ... statement," and the printed transcripts contain a mistake. Let me explain.

First, Kerry did not say "I think, under the full faith and credit laws, that I was incorrect in that statement." He said "I think, under the Full Faith and Credit Clause, that I was incorrect in that statement." I can verify that with utter certainty, thanks to TiVo.

The Full Faith and Credit Clause is part of the Constitution, the part that would be used to argue that the state was obligated to recognize marriages of other states. If, as many people believe, the Full Faith and Credit Clause in fact allows states to disregard marriages that offend their public policy, then the states already have the power that the proposed Federal Marriage Amendment purports to give them. DOMA is then superfluous, and so is the proposed amendment.

This means that Kerry could still have the position that DOMA is unconstitutional, and could coherently (though too briefly) be answering Rothstein's question about why the proposed amendment isn't needed. In this interpretation, Kerry's answer was responsive, and he hasn't flip-flopped, but he was not given the time to explain what he was talking about. And the incorrect transcript sure doesn't help!

In any case, the issue is far too complex to explain in a debate setting. (I once based a Constitutional Law exam on it.) If Kerry had actually tried to explain the law here, everyone would have complained that he was insufferably pedantic.